[2019] KEHC 4131 (KLR)
The court found that the appellant was properly convicted for stock theft based on positive identification by witnesses and the recovery of the stolen animals. However, the sentence of 7 years imprisonment was deemed excessive given the value of the animals (Ksh. 80,000) and the fact that they were recovered and...
Source-derived case information.
- Citation
- [2019] KEHC 4131 (KLR)
- Parties
- Appellant: John Nayeke alias Abusake; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kabarnet
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 13 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Appeal on sentence allowed; conviction affirmed; sentence reduced to period already served.
- Judges
- EM Muriithi
- Legal Topics
- Stock Theft, Sentencing Principles, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nayeke alias Abusake
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted for stock theft contrary to section 278 of the Penal Code.
- 2 Whether the sentence of 7 years imprisonment was excessive in the circumstances.
- 3 Whether the period spent in custody should be considered in sentencing under section 333(2) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the appellant was properly convicted for stock theft based on positive identification by witnesses and the recovery of the stolen animals. However, the sentence of 7 years imprisonment was deemed excessive given the value of the animals (Ksh. 80,000) and the fact that they were recovered and restored to the owner. The court held that the period of actual custody already served (1 year 11 months) was sufficient punishment, especially when considering the requirements of section 333(2) of the Criminal Procedure Code. Consequently, the sentence was reduced to the period already served, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
Appeal on sentence allowed; conviction affirmed; sentence reduced to period already served.
Orders
- The conviction for stock theft contrary to section 278 of the Penal Code is affirmed.
- The sentence of 7 years imprisonment is set aside and substituted with a sentence of imprisonment for the period already served.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KABARNET
CRIMINAL APPEAL NO. 13 OF 2018
JOHN NAYEKE ALIAS ABUSAKE................APPELLANT
=VERSUS=
REPUBLIC......................................................RESPONDENT
[An appeal from the original conviction and sentence of the Principal Magistrate’s Court at Eldama Ravine Cr. Case no. 790 of 2017 delivered on the 28th day of February, 2018 by Hon. J.N. Nthuku, SRM]
JUDGMENT
1. Upon consideration of the evidence as required of a first appellate Court (Okeno v. R (1972) EA 32), I find that the accused was properly convicted for the offence of stock theft contrary to section 278 of the Penal Code. The appellant was positively identified by his former employer (Pw2) and Pw2’s current employee Pw3 as the person who had brought the stolen animals onto the Pw2’s land. The animals were identified by their owner Pw1 upon recovery. Like the trial Court, I reject the appellant defence weighed against the consistent Prosecution evidence.
2. I agree with the DPP that the sentence of imprisonment for 7 years is excessive in view from the value of the animals stolen at Ksh.80,000/= and the fact that the said animals were recovered and restored to their owner Pw1.
3. The appellant was sentenced on 28/2/2018, and has today served 1 year 11 months in prison custody. This period of actual custody is equivalent of a sentence of imprisonment for 2 years 4 months with remission. The appellant had a pre-trial detention of 4 months since arrest on 28/10/2017, which must be taken into account, see section 333 (2) of Criminal Procedure Code.
4. Although the Probation Officer’s Report was negative for non-custodial sentence citing principally the complainant’s negative sentiments, this Court considers that the period of actual custody of one year 11 months is retributive and deterrent enough, and the applicant has learnt his lesson.
Orders
5. Accordingly, there shall be an Order pursuant to section 354 (3) (b) of the Criminal Procedure Code, while affirming the conviction for stock theft contrary to section 278 of the Penal Code, reduces the sentence to imprisonment for the period already served so that the appellant is released from custody forthwith unless he is otherwise lawfully held.
Order accordingly.
DATED AND DELIVERED THIS 30TH DAY OF SEPTEMBER 2019
EDWARD M. MURIITHI
JUDGE
Appearances:
Appellant in person.
Ms. Macharia, Ass. DPP for the Respondent.